ptsd Can A Change To The M21 Allow For Re-Opening The Claim

[Hoppy]

Does a change in the m21 constitute a change in the law allowing for a claim to be re-opened. Case in point. I am assuming the M-21 has changed since 2004. Berta, do you have any old m21’s that you can look at and post what it says in regards to: 13.I only

M21-1MR, Part IV, Subpart ii, Chapter 1, section D, 13.I.

13. General Information on Developing Claims for Service Connection for PTSD, Continued

k. Secondary Sources of Evidence That May Corroborate a Claimed In-Service Stressor Carefully review the following secondary sources of evidence for information confirming participation in combat or to otherwise corroborate a claimed in-service stressor:

Numerous types of evidence were omitted . I am addressing only

……………….

• buddy statements

.

l. Considering Buddy Statements Accept a buddy statement as corroboration of a claimed in-service stressor, so long as the statement is consistent with the time, place, and circumstances of the service of both the Veteran and the buddy.

If the evidence available calls into question the qualifications of the buddy to make the statement, ask the person to submit his/her DD Form 214 or other evidence of service with the claimant.

--------------------------

In 2004 they did not give any reason as to why the buddy statement was not accepted other than they claimed the corroborating buddy letter was not corroborated.

My contention is that the above instruction did not exist in 2004. I have found no objective standard of law circa 2004 requiring that the buddy letter be corroborated. I have successfully used the failure to identify an objective standard of law argument in another case. The case involved an adjudicator who said that it required more than on notation of a disease in the SMR to service connect the disease. They used this argument to deny the claim without a C&P. I argued that the requirement that the disease be noted more than once was a false objective standard of law. The SO turned it in and the claim was awarded based on the existing medical evidence.

[free_spirit_etc]

I see what you are saying on it would make a difference in how the claim is adjudicated. But I don't think a change in the M21 would be considered a change in law. Laws have to be changed by Congress.

But, can you reopen a claim based on a change in VA policies?

[Philip Rogers]

I think you could still do it based on a CUE. M-21 is just the VA's instructions as to how to apply title 38, which is the VA's interpretation of the 38 US Code. jmo

pr

[broncovet]

According to my interpretation of 38 CFR 3.114, my guess the answer to to Hoppy's question would be "yes".

While 3.114 does not mention the M21, the M21 is supposed to be a "rewrite" of 38 CFR to make it easier for rating specialists to apply it.

http://www.law.cornell.edu/cfr/text/38/3.114

Edited September 15, 2013 by broncovet

[broncovet]

Hoppy, I would also recommend reading this, beginning on p.58, which discusses, both liberalizing laws, and reopening under 38 CFR 3.156

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

Edited September 15, 2013 by broncovet

[Berta]

Searching M21-1MR can be a daunting task......

but maybe this will help:

• Evaluate the evidence as a whole to determine whether a stressor is sufficiently corroborated. (See Moran v. Principi, 17 Vet.App. 149 (2003).)

source:M21-1MR, Part IV, Subpart ii, Chapter 1, Section D,under # 13 9a) Change date 2009

# 13, under F

------------------------------------------------------------

Moran V Principi:

“Moran v. Principi, 17 Vet.App. 149, 154 (2003) (CAVC vacates Board decision for its failure to consider the veteran’s allegations of combat as a basis for corroborating an alleged stressor for a PTSD claim.) *Practice Note: PTSD claims, in general, require: 1) a current diagnosis of PTSD, 2) medical evidence of a nexus between the claimed stressor and the PTSD condition, and 3) credible supporting evidence that the alleged in-service stressor occurred. As to the third requirement, a determination of combat status gives rise to a nearly conclusive presumption that the in-service stressor occurred. Often combat status is determined by the veteran’s medals or decorations, but, as Moran points out, a veteran’s statements can also be a basis to find combat status. “

above analysis by http://www.veteranslaw.com/node/142

So , prior to 2004, in essence , the CAVC vacated the BVA's decision, stating

“a determination of combat status gives rise to a nearly conclusive presumption that the in-service stressor occurred."

You stated:

“In 2004 they did not give any reason as to why the buddy statement was not accepted other than they claimed the corroborating buddy letter was not corroborated. “

Was this vet you are helping , a combat veteran?

If not , what steps did the VA take to verify his stressor?

This BVA case arose from a 1995 RO decision and was not decided (and was denied by the BVA) until March 2003, so would encompass any M21-1MR changes prior to 2004.

M21-1MR changes result from any amendment or directive or fast letter that alters a past regulation in any way.,in 38 USC/38 CFR.

Also this case does involve the VCAA, enacted during the appeal period, and therefore was established ,as to how VA would assist the veteran,during the appeal period.

The case is extensive (and one can see why the veteran lost) but contains this dated point(and citation):

“ The evidence
required to support the occurrence of an in-service stressor
varies "depending on whether or not the veteran was 'engaged
in combat with the enemy'. . . . Where . . . VA determines
that the veteran did not engage in combat with the enemy . .
. the veteran's lay testimony, by itself, will not be enough
to establish the occurrence of the alleged stressor."
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The requisite
additional evidence may be obtained from sources other than
the veteran's service medical records. See Moreau v. Brown,
9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir.
1997) (table); see also Dizoglio v. Brown, 9 Vet. App. 163,
166 (1996); Doran v. Brown, 6 Vet. App. 283 (1994); Zaryck,
supra, at 98.”
But the BVA adds:
“However, on June 18, 1999, and retroactive to March 7, 1997,
that regulation was amended to read as follows:

Service connection for PTSD requires medical
evidence diagnosing the condition in accordance
with Sec. 4.125(a) of this chapter, a link,
established by medical evidence, between current
symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service
stressor actually occurred. If the evidence
establishes that the veteran engaged in combat with
the enemy and the claimed stressor is consistent
with the circumstances, conditions, and hardships
of the veteran's service, the veteran's lay
testimony alone may establish the occurrence of the
claimed in-service stressor.”
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp03/Files/0305078.txt

You stated:
“In 2004 they did not give any reason as to why the buddy statement was not accepted other than they claimed the corroborating buddy letter was not corroborated. “
In the above case you will see the extensive steps the VA took to attempt to verify this vets stressor and that was primarily due to the enactment of the VCAA in 2000, after the initial claim was filed.
Hoppy,what evidence or proof did VA state ,in the 2004 decision ,that they actually attempted to verify this vet's stressor?

VA was compelled by the VCAA to attempt to do that.

I have had experience with so-called futile attempts to have NARA verify a stressor (per the VA) but when the vet themselves requested verification from NARA, or JSRRC, the stressor got verified. We had vets here who did that with good results.

One Rule of Thumb I have learned is-if VA says something good in a decision -I buy it,
but if they state they did this or that, and denied the claim, I dont buy the dubious premise that they really 'did this or that'and the veteran him/her self might have to do the 'this and that'.....

Case in point.....I have SMRs here from a vet friend, that VA stated to the veteran had been burned in the St Louis Fire. Duh.!

Another vet I know from the Bath VA was told by VA his SMRS were burned in that same fire too. But when I saw his DD 214 I realized he enlisted years AFTER the fire. Double Duh.His rep never caught that legally erroneous statement in the denial. Triple Duh!

I have extensive medical records from VA in NJ for my husband that VA told me did not exist.

And a five page critical Peer Review report the Regional Counsel ordered when he got my FTCA case...which VA (to include VALM (VA Legal/Medical)-who documents these Peer Reviews ) told me Never existed.(But I found it 8 years later at the bottom of my C file)

This vet might have to contact JSRRC himself.

Have you seen the entire decision?

Were there other factors they used to deny the claim?

"i have successfully used the failure to identify an objective standard of law argument in another case"

Me too..it was my SMC CUE and my current pending Cue Request.

Even with the most probative evidence a vet or survivor can have, VA might still turn it all into a War of the Words.

38 and M21 is literally full of objective standards of law........laws that control us

and laws that control them too!!!!

Edited September 16, 2013 by Berta

[broncovet]

Berta:

As usual, your answer was better than mine. You brought up a good point, which is "spot on": You can not trust VA, and what they write. I actually recall reading where a Veteran was denied, in part, because the Vets records were destroyed in the 1973 fire. However, this Vet did not exit service until 1980, so his records could NOT have been destroyed in the 73 fire. This is the standard excuse VA uses for denials.